
Two years after Richard Frenkel—at the time an
in-house Cisco Systems, Inc., lawyer and now of counsel at Wilson
Sonsini Goodrich & Rosati—outed himself as the until-then-anonymous
author of the controversial patent litigation blog, the Patent Troll
Tracker saga appears to be over.
In January, a libel suit filed by East Texas lawyer T. John “Johnny”
Ward, Jr. against Cisco over the contents of an October 2007 Troll
Tracker post was settled under confidential terms. Frenkel—dismissed as
a defendant in the case last August at Ward's request—has declined to
comment on either Ward's suit or a second, related defamation claim
filed against him and Cisco by East Texas lawyer Eric Albritton. (That
suit settled in September after a week-long trial; see earlier coverage on The Prior Art here, here, and here.)
While it’s clear now that at least a few high-level Cisco employees
knew the Troll Tracker’s identity, company lawyers say no one there
besides Frenkel contributed to the blog. Still, because Cisco is
helping to lead the lobbying charge in favor of reforming the nation's
patent laws—with a particular focus on lowering litigation payouts to
non-practicing entities (a.k.a. NPEs, or "patent trolls")—those who
advocate for small patent holders sensed a Frenkel-Cisco conspiracy.
Putting aside the conspiracy theories aside and drama—two lawyers
with a high profile in the Eastern District of Texas's lucrative patent
litigation scene suing Cisco and one of its in-house lawyers for libel
and defamation—it seems like an opportune time to take a broad look at
the big issue at the heart of the Troll Tracker tale: that the huge
piles of money at stake in patent litigation has created an independent
class of IP professionals? As it happens, a PricewaterhouseCoopers
study released in January on just that topic has some answers.
"Patent trolling" has its rewards.
Tech-sector executives and lawyers say privately—and an informed
review of court dockets confirms—that so-called trolls aren't just
surviving, they're thriving. The essential NPE tactic—suing a broad
swath of companies for patent infringement, then settling with each
defendant for less than the cost of fighting such a suit—is now an
established business model. It's so solid, in fact, that patent-holders
are starting to delve into previously untouched economic sectors, suing
small retailers and even photographers.